Citation: R v Ross Gillett [2005] NSWDC 20
Court: District Court of New South Wales
Date: 25 November 2004
Judge(s): Berman SC DCJ
Background
The accused was charged with three counts of dangerous driving causing death following a series of collisions on Condamine Street, Manly Vale, on the afternoon of 2 May 2003. He was driving a Toyota Avalon when he struck a vehicle that had slowed for a red light, continued without stopping, and then ploughed into the rear of a car carrying a family of three. The force of that second impact pushed the family's car across the median strip and into the path of an oncoming four-wheel drive, killing all three occupants. The accused continued driving and struck a third vehicle before coming to rest.
A strikingly similar incident had occurred a decade earlier, in August 1993, in what appeared to be the same stretch of road. On that occasion the accused had driven into the back of at least two vehicles, and witnesses reported seeing his head slumped on the steering wheel.
The accused's defence was that, at the time of the 2003 collisions, he had suffered an epileptic seizure, rendering his conduct involuntary. The central question for the judge-alone trial was whether the Crown had proved beyond reasonable doubt that the accused was driving voluntarily, or, if not, whether he had been driving dangerously by knowingly taking the wheel while at risk of an unannounced seizure.
Legal Issues
- Whether the accused suffered a fit or seizure at the relevant time, such that his driving was involuntary.
- If there was a reasonable possibility of a seizure, whether the accused was nevertheless driving voluntarily given his awareness and retained ability to control the vehicle.
- If voluntariness at the moment of impact could not be established, whether the accused had been driving dangerously at an earlier point when he was indisputably in voluntary control, by knowingly taking the risk of suffering a seizure while driving, and without a reasonable belief that it was safe to do so.
- Whether the accused's repeated false declarations to the Roads and Traffic Authority (RTA) about his epilepsy were relevant to his state of belief regarding the danger he posed.
Decision
His Honour assessed the medical evidence and accepted that the accused had suffered an epileptic seizure during the 2003 driving incident. The primary Crown argument, that no seizure had occurred at all, was therefore not made out beyond reasonable doubt. His Honour also found that the evidence did not establish beyond reasonable doubt that the accused had been driving voluntarily in the moments immediately before the collision with the Howie family's vehicle.
The case was resolved on the Crown's third alternative argument. His Honour found that, at a point before any seizure took effect, the accused had been driving voluntarily while knowingly exposed to a risk of suffering an unannounced daytime seizure. The 1993 incident was highly significant: it demonstrated that the accused knew from experience that a seizure could render him incapable of controlling his vehicle without warning, in circumstances almost identical to those that led to the deaths.
The accused had repeatedly provided false information to the RTA when renewing his driver's licence, concealing his epilepsy to avoid scrutiny of his fitness to drive. His Honour treated this pattern of deliberate deception as the clearest evidence of the accused's own belief: namely, that he knew his driving carried a serious danger to others. The absence of a recorded daytime seizure in the preceding decade and the fact that he was taking medication were noted, but were not sufficient to displace that conclusion in light of the lies told to the RTA.
His Honour was satisfied beyond reasonable doubt that the accused did not believe it was safe for him to drive, and that the risk he posed was not fanciful but real and serious. In those circumstances, whether or not that belief was objectively reasonable was immaterial. All elements of each of the three offences were established.
Orders Made
- The accused was found guilty on each of the three counts of dangerous driving causing death.
Key Takeaways
- The District Court confirmed that a charge of dangerous driving causing death can be established even where a defendant experiences a genuine epileptic seizure, provided the Crown proves the accused was driving voluntarily at an earlier point while knowingly at risk of an unannounced seizure.
- Where the voluntariness of driving at the moment of impact cannot be proved beyond reasonable doubt, the Crown may succeed by establishing that the accused drove dangerously before any incapacitating episode, combined with proof that the accused did not hold a reasonable belief that it was safe to drive.
- A defendant's subjective belief about the danger of their driving is a central consideration under this third pathway, and evidence of the accused's own state of mind, including conduct designed to conceal a medical condition from licensing authorities, is directly relevant to that assessment.
- Repeated false declarations to a licensing authority to avoid scrutiny of fitness to drive can be treated as probative evidence of a defendant's actual belief that their driving was dangerous.
- Prior incidents bearing a close factual similarity to the charged conduct are relevant not only to the question of dangerousness but also to what the accused knew about the risks their medical condition posed to other road users.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW)
- Mental Health Act 1990 (NSW)
Cases:
- Jiminez v The Queen (1992) 173 CLR 572
- The Queen v Falconer (1990) 171 CLR 30
- McBride v The Queen (1965) 115 CLR 44
- Vallance v The Queen (1961) 108 CLR 56
- Broome v Perkins (1987) 85 Cr App R 321
- R v Parks [1992] 2 SCR 871 (Supreme Court of Canada)